P. v. Terry

Filed 8/21/07 P. v. Terry CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sutter)

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Defendant Daniel Paul Terry pleaded no contest to inflicting corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a); further section references are to the Penal Code), stemming from an incident in which he punched his girlfriends face and head, grabbed her by the hair and kicked her after she had fallen to the floor. Defendant was placed on probation for three years with terms and conditions including a requirement that he serve 120 days in jail. Less than a month later, defendants probation was revoked based on a probation officers declaration alleging that defendant failed to report for his jail sentence and falsely identified himself to a peace officer. ( 148.9.) A subsequent amended declaration contained several additional allegations concerning defendants failure to comply with conditions of probation.

Defendant was arrested in another county on a bench warrant for the violations of probation. He posted bail but failed to appear in court in the matter. Consequently, defendant was charged with failing to appear on a felony ( 1320.5) and an enhancement for committing the offense while out on bail on another charge. ( 12022.1.)

Defendant pleaded guilty to the failure to appear charge and admitted the enhancement for committing the offense while out on bail. He also admitted that he violated the terms of his probation as alleged.

On the date set for sentencing, the matter was continued at the request of defendants attorney so that he could file a statement in mitigation. The statement in mitigation subsequently filed by defense counsel listed several mitigating factors, including defendants motivation to comply with probation because of his children and other reasons.

At the sentencing hearing, defendants attorney sought an additional continuance of a couple days to present information to the trial court concerning a child custody matter in another county. The attorney explained that defendant had been out of county on the child custody case, and although the attorney had been able to speak to defendant by telephone, defendant had additional information concerning the resolution of the custody matter that the attorney wanted to present. In response to the trial courts query regarding the relevance of the child custody proceedings, defendants attorney explained that the point of the [s]tatement of [m]itigation [wa]s that [defendant] has family he needs to be responsible for and he would lose his children if he was sent to prison. The attorney stated that defendant had returned from the other county with documents that might impart a better flavor of this case to the [c]ourt but he did not have copies of the material for the court.

The trial court stated it was willing to review defendants documents and have copies made for the court file. It then denied the request for a continuance.

Defendant addressed the trial court and, presumably to explain his repeated failures to appear in court, he explained that he had been homeless and had his children in his care and had been scared to go to jail and lose [his] kids. Defendant asked the court for the opportunity to enter drug treatment.

The trial court noted that defendant was presumptively ineligible for probation as a result of his two prior felony convictions and found no unusual circumstances that would warrant a grant of probation. The court sentenced defendant to a term of five years, selecting a midterm of two years for the failure to appear and imposing consecutive sentences of one year for corporal injury on a cohabitant and two years for the out on bail enhancement.

Defendant appealed.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental letter brief raising several issues. He first contends that he was prejudiced by the denial of his attorneys request to continue his sentencing. He claims he was not able to discuss mitigating circumstances with his attorney [b]ecause of all the transporting from [c]ounty to [c]ounty, and that, as a result, his attorney wasnt able to say anything good on [his] behalf. The record does not support this contention.

A continuance may be granted only on a showing of good cause. ( 1050, subd. (e).) Contrary to defendants claim, defense counsel represented that he had been able to speak to defendant by telephone, and he filed a statement in mitigation and presented documents and argument to the trial court regarding defendants child custody issues and how they related to his sentencing. Defendants attorney sought a continuance to make copies of defendants documents for the court and opposing counsel. However, the court was able to review the documents before pronouncing sentence, and the People waived review of them. As the court was willing and able to consider the information defendant sought to present at the sentencing hearing, there was no good cause for the continuance.

Next, defendant mistakenly asserts that he was over[-] sentenced on his conviction for felony failure to appear because that offense is punishable by up to one year in county jail or state prison, whereas he was sentenced to two 2-year [c]onsecutive terms. Defendant is correct that a violation of section 1320.5 is punishable by up to a year in county jail or state prison. When a state prison term is not otherwise specified for a felony, imprisonment may be for either 16 months, two years or three years. ( 18.) As defendant was not sentenced to county jail, he was subject to imprisonment for one of these three terms. The other two-year term was not imposed for failure to appear but for committing a felony while out on bail on another felony, a mandatory consecutive two-year enhancement. ( 12022.1, subd. (b).) Defendants sentence was proper.

Finally, defendant asserts his sentence violated double jeopardy because, he claims, he was sentenced twice for the same offense. He is incorrect. Defendant was out on bail on the probation violation for one felony offense (corporal injury on a cohabitant) when he committed a new felony (failure to appear on a felony offense), giving rise to the enhancement under section 12022.1. As the offenses and enhancement have different elements, there was no double jeopardy violation.

We have undertaken an independent examination of the entire record in this case and have found no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

SIMS , Acting P.J.

BUTZ , J.

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